Opinion
E065773
03-16-2018
JOHN HENRY YABLONSKY, Plaintiff and Appellant, v. MICHAEL RAMOS et al., Defendants and Respondents.
John Henry Yablonsky, in pro. per., for Plaintiff and Appellant. Michelle D. Blakemore and Jean-Rene Basle, County Counsel, Matthew J. Marnell, Deputy County Counsel, for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1506664) OPINION APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed. John Henry Yablonsky, in pro. per., for Plaintiff and Appellant. Michelle D. Blakemore and Jean-Rene Basle, County Counsel, Matthew J. Marnell, Deputy County Counsel, for Defendants and Respondents.
Plaintiff and appellant John Yablonsky was found guilty of the first degree murder of Rita Cobb. In September 1985, Cobb was discovered nude and strangled by a hanger in her bedroom. A DNA sample taken from her vagina was matched to Yablonsky's DNA in 2009. Yablonsky was sentenced to life without the possibility of parole. Yablonsky's conviction was affirmed on appeal by this court in 2013. (People v. Yablonsky (Dec. 4, 2013, E055840) [nonpub. opn.] .) Review was denied by the California Supreme Court in 2014. Yablonsky's habeas corpus petitions filed in the state courts attacking his conviction were unsuccessful and he remained incarcerated.
We take judicial notice of the opinion and record in case No. E055840.
On December 24, 2015, he filed his first amended complaint against defendants and respondents Michael Ramos, David Sanders and John Thomas (collectively, Defendants) on the grounds of negligence, professional negligence and violation of his federal Constitutional rights. Ramos, who at the time of Plaintiff's conviction was the District Attorney of San Bernardino County; Sanders, who represented Yablonsky at his trial; and Thomas, who was the deputy district attorney who prosecuted Yablonsky's case, filed a demurrer. Yablonsky's request for a continuance to file opposition to the demurrer was denied.
Defendants are represented by San Bernardino County Counsel. Although Yablonsky named other persons in his action, the only persons who filed a demurrer were Ramos, Thomas and Sanders. Yablonsky only appeals the grant of the demurrer, which he acknowledges was filed only by Defendants. We need only be concerned with Defendants. --------
The trial court granted the demurrer finding that the causes of action against Ramos and Thomas were all based on their actions prosecuting Yablonsky and they were immune pursuant to Government Code section 821.6. The trial court also granted the demurrer as to Sanders on the ground that each of the causes of action alleged against him were based on malpractice and Yablonsky had failed to show that he had obtained the required postconviction relief required to bring a malpractice claim.
Yablonsky filed this appeal appearing to argue that the trial court erred by denying his request for a continuance to oppose the demurrer and that the demurrer should have been denied.
FACTUAL AND PROCEDURAL HISTORY
A. STATEMENT OF FACTS
In September 1985, Rita Cobb's decomposing body was found by her son in her bedroom in her Lucerne Valley home. She was nude and had been strangled by a hanger. No suspect was found at the time. Semen was found in her vagina. DNA tests were performed on the semen in 1999 but no match was found. In 2003, the DNA was once again tested and at some point matched to Yablonsky. In 2009, Yablonsky was interviewed. He lived in Long Beach but advised interviewing San Bernardino County Sheriff's Detectives Rob Alexander and Greg Myler that in 1985, he and his wife rented a back house on Cobb's property in Lucerne Valley. When Yablonsky denied having sexual relations with Cobb, or any type of intimate relationship with her, he was arrested for her murder. (People v. Yablonsky, supra, E055840 at pp. *2-4.)
B. PROCEDURAL HISTORY
1. BACKGROUND
Yablonsky was found guilty of first degree murder and sentenced to life without the possibility of parole. In his first appeal in this court, he raised several issues, including that he was denied his right to present third-party culpability evidence and evidence regarding Cobb's promiscuous lifestyle; the exclusion of evidence that a person named William Backhoff had been bragging about murdering Cobb in 1988; the trial court erred by denying his motion for new trial based on ineffective assistance of counsel; instructional error; and improper denial of his motion to recuse the San Bernardino County District Attorney's office and denial of his request to change venue. He sought the change of venue and recusal on the ground that prior to his trial, Ramos had sent out fliers in connection with his reelection campaign with Yablonsky's photograph, stating he had finally been caught due to the cold case division started by Ramos. Yablonsky's conviction was affirmed and review in the California Supreme Court was denied. His state court habeas petitions attacking his conviction were also denied.
On February 3, 2015, Yablonsky filed a federal civil rights complaint pursuant to Title 42 United States Code section 1983 in Yablonsky v. Ramos, et. al., case No. CV15-00197. He brought the action against Defendants due to illegal interrogation, use of altered evidence, and based on Ramos sending out the offending fliers. His causes of action were based on violations of his Fourth, Fifth, Sixth and Fourteenth Amendment rights. The federal court dismissed the first complaint with leave to amend on the grounds that to the extent his claims implicated the validity of his conviction, they were barred based on his conviction not being first overturned, and many of the persons named were entitled to immunity.
Yablonsky filed an amended complaint. The federal court issued an order that the gravamen of his claims in the amended complaint was that he was wrongfully convicted of Cobb's murder; specifically, the claims that Ramos tainted the jury pool by sending out fliers, the admission of altered evidence and Sanders's failure to adequately defend him. The federal court ruled that unless Yablonsky could show reversal of his conviction, he could not bring the Title 42 United States Code section 1983 action. Yablonsky was admonished that if he did not file a timely third amended complaint, the action would be dismissed with prejudice.
On November 25, 2015, Yablonsky moved to have the entire action in federal court dismissed without prejudice. He claimed that he had a stroke on October 11, 2015, and that he was having vision problems. He would be unable to timely file a third amended complaint. The motion was granted on December 3, 2015.
2. COMPLAINT AND FIRST AMENDED COMPLAINT
Yablonsky filed his original complaint in the trial court on May 11, 2015. He named Michael Ramos, John Thomas, John Doe, Robert Alexander, Greg Myler, David Sanders and Captain Wickham. A demurrer was filed on September 3, 2015, arguing it was not timely based on the requirement that notice be given to the County before such an action could be filed and then a timely filed complaint must be filed. Yablonsky filed opposition on October 21, 2015. After a hearing conducted on November 30, 2015, the trial court sustained the demurrer on the ground that Yablonsky's claims appeared to be time barred unless Yablonsky could plead facts to support a delay in filing. Yablonsky was given 30 days to file an amended complaint.
On December 24, 2015, Yablonsky filed his first amended complaint (FAC). He stated that his causes of action were for "CIVIL RIGHTS LOSS." He sought $500,000,000 in damages. He named as respondents Michael Ramos, prosecutor; David Sanders, his counsel; Geoffery Canty, legal counsel; Phil Zywiciel, legal counsel; Mark Shoup, legal counsel; Robert Alexander, San Bernardino County Sheriff's Detective; Greg Myler, sheriff's detective; Don Boldt; Captain Wickham; "Defendant sheriff of the county (john doe)"; and John Thomas.
In the first portion of the FAC, he set forth facts showing his diligence in bringing the claims. He insisted he was never given all of the records in the case and could not bring the claims until he obtained the necessary records. He also attached a declaration in support of tolling under Code of Civil Procedure section 338, subdivisions (d) and 340.6, subdivision (3) and numerous exhibits in regard to his diligence in bringing the action.
As for the facts, Yablonsky alleged that on March 8, 2009, Detective Alexander, assisted by Detective Myler, interrogated Yablonsky in his home. They then transported him to the local police station where they continued their interrogation. They arrested Yablonsky. After the interrogation, the recordings were transcribed at the direction of Thomas. Yablonsky stated the transcriptions were altered numerous times by Alexander at the direction of Thomas. Ramos and Sanders assisted or were aware of the alterations.
Yablonsky's legal counsel—Sanders, Shoup, Canty and Zywiciel—hid the changes to the transcript from him. Canty, who first represented him, hid evidence from him despite Yablonsky asking for all of the discovery. Sanders, his second counsel, also hid discovery from him against the rules of professional conduct. This included information regarding William Backhoff who Yablonsky claimed was the true killer. Sanders also withheld reports from him. Yablonsky alleged that Shoup was the supervisor of Sanders and instructed his attorneys. Zywiciel had represented Yablonsky when Sanders got ill.
Yablonsky further claimed that Sanders failed to conduct appropriate investigation into the DNA evidence including a red hair found on Cobb's body and DNA on cigarette butts in the house; and investigate further defense witnesses. Sanders rested the case without Yablonsky making a decision whether to testify.
Yablonsky further alleged that Ramos was the District Attorney for the San Bernardino County District Attorney's Office. John Thomas was the deputy district attorney assigned to Yablonsky's case. Ramos, prior to Yablonsky's trial, printed flyers to be distributed to residents of San Bernardino County where he was running for reelection as district attorney. The flyers depicted a photograph of Yablonsky along with the information that a suspect was arrested in the cold case involving Cobb. It extolled Ramos's efforts in the cold case division and that Cobb's family would finally have closure. Sanders did not adequately address the issue prior to Yablonsky's trial.
Yablonsky's first cause of action for "to be secure in person" and "negligence" was against Detectives Myler and Alexander. Yablonsky alleged they improperly interrogated him. This violated his state and federal Constitutional rights. He continued to suffer irreparable harm due to the actions of Myler and Alexander.
Yablonsky's second cause of action was for negligence. It named Detectives Myler and Alexander, sheriff of the San Bernardino County Sheriff's office, Thomas, Sanders, Ramos and Shoup. They violated his Fifth and Fourteenth Amendment rights against self "compulsion," due process and equal protection. They also violated his rights under the state Constitution. The violation was based on the presentation of the interrogation to the jury, which caused him irreparable harm.
Yablonsky's third cause of action was for negligence and "right of access to court." He named Sanders, Shoup, Captain Wickham and Boldt. His First, Sixth and Fourteenth Amendment rights under the federal Constitution were violated and his state Constitutional rights were violated. The jail officials blocked access to his attorney and other public officials. Sanders and Shoup were aware of the restrictions and did not try to remedy the situation. Yablonsky would continue to suffer his loss of rights.
Yablonsky's fourth cause of action was for "negligence, false light, libel [and] equal protection of the laws." Yablonsky alleged violations of his Fourteenth Amendment rights under the federal Constitution and the equal protection clause. He also raised violations of his state Constitutional rights. This cause of action was based on Ramos distributing flyers to voters in his campaign depicting Yablonsky's photograph and stating he had been arrested for Cobb's murder. Yablonsky would continue to suffer a loss of his rights.
Yablonsky's fifth cause of action was based on negligence, professional negligence and right to an impartial jury. He named Defendants, Shoup and Detective Alexander. He alleged violations of his Fifth, Sixth and Fourteenth Amendment rights under the federal Constitution and his state Constitutional rights. He alleged that by Ramos sending out the flyers, his rights to an impartial jury were violated. Sanders and Shoup violated his rights by scheduling a trial in front of a biased jury.
Yablonsky's sixth cause of action was for negligence, professional negligence, due process of law and equal protection. He alleged violations of the Fifth and Fourteenth Amendments of the federal Constitution and the California Constitution. He named Defendants, Shoup and Detective Alexander. He alleged fabrications of evidence.
Yablonsky's seventh cause of action was for negligence, professional negligence, right of access to counsel and equal protections of laws. He alleged violations of the Fifth, Sixth and Fourteenth Amendment under the federal Constitution and under the state Constitution. He named Shoup, Sanders, Canty and Zywiciel. This cause of action related to the failure to advise Yablonsky of all of the discovery in the case. His counsel violated rules of professional conduct and caused him irreparable harm, including his loss of rights.
Yablonsky then provided a list of Penal Code and Evidence Code violations committed by Defendants.
3. DEMURRER
On January 21, 2016, Defendants filed a demurrer to the FAC. They alleged that all of the causes of action were barred under the doctrine of judicial estoppel. Yablonsky had pursued the same claims in the federal court and twice had his complaint dismissed by the federal court. Yablonsky then dismissed his action in the federal court prior to filing a third amended complaint advising the federal court that he was too sick to pursue the matter. Defendants further alleged that all of the causes of action were uncertain as it was not clear whether they arose from a civil rights action under Title 42 United States Code section 1983 or a state tort action.
Defendants also contended that any action under Title 42 United States Code section 1983, and any state negligence claim, should be dismissed as Yablonsky had not shown by sufficient facts that his conviction was reversed on appeal or otherwise reversed. This was an element of both of these types of claims. His claims were not cognizable. Yablonsky's claims of professional negligence were not cognizable because he had to prove exoneration by postconviction relief as an element of the cause of action. Further, any causes of action against the prosecutors of his case lacked merit because under both state and federal law they were entitled to immunity.
On January 21, 2016, along with the demurrer, Defendants submitted a request for judicial notice of the filing of the civil rights complaint and amendments pursuant to Title 42 United States Code section 1983 by Yablonsky in the federal court. On February 3, 2016, Yablonsky filed an intent to oppose defendants' demurrer. No opposition was filed.
On February 22, 2016, Yablonsky filed a request for a continuance to file his opposition to March 29, 2016. He stated he had limited access to the law library and his vision problems made it difficult to review materials.
C. RULING
The matter was heard on February 29, 2016. The trial court stated that it had considered the demurrer of Defendants to the FAC. The court had read the moving papers and the "opposition." Yablonsky inquired about the continuance requested. The trial court denied the motion for continuance. Yablonsky argued that he had only just started researching his opposition to the demurrer but due to his vision problems was having trouble completing his opposition. Yablonsky insisted that the opposition he intended to file would cause the trial court to overrule the demurrer. The trial court stated, "Thank you very much, Mr. Yablonsky. Anything else?" Yablonsky stated there was nothing else. The matter was submitted.
The court's written ruling was as follows: "The Court SUSTAINS the demurrers of Mr. Ramos and Mr. Thomas to the First Amended Complaint (FAC), without leave to amend, on the ground that plaintiff's causes of action alleged against those defendants are based on their actions in initiating and prosecuting the criminal action against plaintiff and those defendants are thus immune from liability pursuant to Government Code section 821.6. The Court SUSTAINS Mr. Sander's demurrer to the FAC, without leave to amend, on the ground that each of the causes of action alleged against Mr. Sanders sound in malpractice and plaintiff fails to show that he has obtained the required post-conviction relief." Judgment was entered dismissing the case on March 18, 2016.
On March 4, 2016, Yablonsky filed a motion to reconsider the ruling on the demurrer. He argued that judicial estoppel did not apply to the case because he was addressing different state and federal actions. Further, the prosecutors did not have immunity for their actions. The trial court also erred by refusing to grant his request for a continuance to file the opposition.
On March 16, 2016, Defendants filed opposition to the motion for reconsideration. Defendants stated it was not clear if Yablonsky was seeking reconsideration of the denial of his request for a continuance, which was filed on February 22, 2016, or whether he was seeking reconsideration of the demurrer. The motion for reconsideration should be denied. Yablonsky failed to present valid evidence that the continuance should have been granted. He argued he had suffered a stroke but provided no medical evidence. Further, he presented no new evidence that would support reconsidering the demurrer.
On March 28, 2016, Yablonsky filed a reply to the opposition. He contended he should have been granted a continuance to file opposition to the demurrer because he needed more time to research. He claimed to have limited access to the law library and suffered from double vision requiring more time to review documents.
On April 14, 2016, Yablonsky filed his notice of appeal. Based on Yablonsky filing his notice of appeal, the motion for reconsideration was stayed pending appeal.
DISCUSSION
Yablonsky entitles his appeal "Plaintiffs appeal regarding ruling of demurrer filed by said defendants Ramos, Thomas, Sanders of hearing date February 29, 2017 sustaining demurrer without allowing Plaintiff opportunity to file opposition." Most of Yablonsky's brief is unintelligible. However, it does appear he is arguing that the fact he was granted the opportunity to file the FAC included that he had a right to file his opposition. This appears to be an argument that the trial court erred by denying a continuance to file his opposition.
In addition, it appears Yablonsky is arguing Ramos violated his rights guaranteed under the federal Constitution and state statutes by mailing out fliers with his photograph and altering evidence of the interrogation transcripts. Ramos set Yablonsky's trial date to assist Ramos in his election campaign. Thomas violated Yablonsky's federal Constitutional rights and state statutes by altering the interrogation transcripts. Finally, Sanders committed professional negligence by lying about discovery, hiding evidence, and working with the State to alter evidence and keep records from Yablonsky. Yablonsky contends that these parties were not immune from civil liabilities. His argument regarding Title 42 United States Code section 1983 contains numerous misspellings and is incoherent.
A. DENIAL OF CONTINUANCE
Yablonsky appears to contend that the trial court erred by failing to grant his continuance to file opposition to the demurrer. We review the trial court's decision to grant or deny a continuance for abuse of discretion. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.) To obtain a continuance, a party must show good cause. (Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 444.)
The trial court did not abuse its discretion in denying Yablonsky's continuance. Yablonsky provided no evidence of his medical condition or what he would present in his opposition. Yablonsky had complained about his medical problems in the federal court in November 2015 insisting he could not file a third amended complaint, but in December 2015, he was able to file the FAC. No good cause for a continuance was shown by Yablonsky. The trial court could decide the case based on the allegations in the FAC and the demurrer without his opposition.
B. GRANT OF DEMURRER
When the trial court has sustained a demurrer without leave to amend, the appellate court will assume as true all facts that may be implied or inferred from those expressly alleged, to determine whether they state a cause of action on any available legal theory. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Although we accept as true all facts properly pled in the complaint, we do not assume the truth of "contentions, deductions or conclusions of law." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We review the demurrer rulings on a de novo basis. (Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1363.)
Absent a reasonable possibility that any pleading defects can be cured by amendment, the trial court does not abuse its discretion by denying leave to amend. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967.) Appellant carries the burden of proving an amendment would cure any defect. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Initially, the demurrer was appropriately granted under Code of Civil Procedure section 430.10, subdivision (f), which provides, "The pleading is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible." Yablonsky's entire FAC was unintelligible. Although Yablonsky alleged that his causes of action were based on negligence, professional negligence, and violations of his federal Constitutional rights, he provided nothing to support recovery on such theories. The trial court could grant the demurrer based on it being unable to understand the claims raised by Yablonsky.
To the extent that Yablonsky was raising claims that his civil rights were violated, e.g., claims under Title 42 United States Code section 1983, he was not entitled to relief and the trial court did not err by dismissing the FAC without leave to amend. Title 42 United States Code section 1983 provides in pertinent part that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."
In Heck v. Humphrey (1994) 512 U.S. 477, 486 through 487, the court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus. . . . Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Similarly, the California Supreme Court has held, "a state prisoner's claim for damages is not cognizable under 42 U.S.C. § 1983 if 'a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence," unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated.' " (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 893.)
Here, Yablonsky failed to establish that his conviction had been overturned or that if he was successful his conviction would be invalidated. As such, his claims under Title 42 United States Code section 1983 were properly dismissed without leave to amend.
Moreover, to the extent he was raising negligence claims under state law, Ramos and Thomas, as prosecutors, were entitled to immunity. In order for Yablonsky to prevail on his negligence causes of action, he must show that Defendants owed him a legal duty, that they breached that duty, and the breach was a proximate or legal cause of his injuries. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) Government Code section 821.6 provides, "[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." "[Government Code s]ection 821.6 covers the initiation or prosecution of judicial or administrative proceedings where the target may or may not be a state employee. The policy behind section 821.6 is to encourage fearless performance of official duties. [Citations.] State officers and employees are encouraged to investigate and prosecute matters within their purview without fear of reprisal from the person or entity harmed thereby. Protection is provided even when official action is taken maliciously and without probable cause." (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1424.)
Government Code section 821.6 is not limited to "conduct occurring during formal proceedings." (Javor v. Taggert (2002) 98 Cal.App.4th 795, 808.) "'[I]t also extends to actions taken in preparation for formal proceedings. Because investigation is "an essential step" toward the institution of formal proceedings, it "is also cloaked with immunity." ' " (Ibid.) "Under California law the immunity statute is given an 'expansive interpretation' in order to best further the rationale of the immunity, that is, to allow the free exercise of the prosecutor's discretion and protect public officers from harassment in the performance of their duties." (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292.)
Thomas, who was the prosecuting attorney, clearly was entitled to immunity for claims that he altered transcripts or withheld evidence. Ramos was the District Attorney of San Bernardino County, and as such, was Thomas's supervisor. Claims that the transcripts were altered was clearly within Government Code section 821.6. Broadly interpreting Government Code section 821.6, the fliers were reasonably related to Yablonsky's prosecution as the cold case division was used to initiate the prosecution against Yablonsky. Ramos was entitled to immunity. As such, no negligence claim would be successful.
Yablonsky cites to Imbler v. Pachtman (1976) 424 U.S. 409 to support his claim that the prosecutor was not entitled to immunity. This case does not support his claim as the plaintiff in that case had been granted postconviction relief by having his petition for writ of habeas corpus granted. (Id. at p. 415.)
To the extent that Yablonsky is claiming malpractice or professional negligence on Sanders's part, he also has failed to show he achieved a reversal of his conviction as required. " ' "[P]ermitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime." ' " (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 537.) Further, " 'allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict.' " (Ibid.) "Only an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss." (Id. at p. 539.)
Yablonsky has not shown that he obtained a reversal of his conviction. As such, he cannot show that he could allege a proper cause of action of malpractice or professional negligence against Sanders.
As stated, it is Yablonsky's burden to prove an amendment would cure any defect. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) Here, Yablonsky has not met his burden of showing how he could amend his FAC to allege a cognizable claim. He certainly was unable to amend his complaint filed on identical grounds in the federal court to raise a cognizable claim. As such, the trial court properly granted the demurrer without leave to amend.
DISPOSITION
The grant of the demurrer without leave to amend is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.